On March 4, 2023, the Constitutional Court handed down Judgment 112-Hsien-Pan-4 (“Judgment”) to decide whether the proviso of Paragraph 2, Article 1052 of the Civil Code violates the constitutional right to freedom of marriage. The Constitutional Court updated the established judicial interpretation, declaring that the proviso bans only the spouse “wholly at fault” from filing for divorce. Furthermore, the Constitutional Court held that the proviso partially violates the constitutional right to freedom of marriage because the blanket ban does not recognize exceptions permitting the spouse “wholly at fault” to file for divorce.

 

Below is a summary of the requirements for filing a divorce under Article 1052 of the Civil Code and the significant impact of the Judgment on the judicial divorce system:

 

If the spouses are unable to reach agreement on divorce, the spouse who intends to divorce can resort to only the judicial divorce system, and the court will grant the spouse a judicial divorce only if the requirements in Article 1052 of the Civil Code are met.

 

Prior to the amendment of the Civil Code in 1985, Article 1052 listed only 10 reasons for judicial divorce. If none of the reasons for judicial divorce was met, regardless of whether the marriage was difficult to maintain or had broken down, the spouse could not file for divorce.

 

However, allowing a judicial divorce only if at least one of the 10 reasons in Article 1052 was met was too rigid. Therefore, in the 1985 amendment to the Civil Code, the legislators introduced Paragraph 2, Article 1052 of the Civil Code, which enabled the court to grant a judicial divorce even if none of the 10 reasons could be met, as long as there were other substantial reasons that would make it difficult to maintain the marriage. And for the sake of fairness, the proviso of Paragraph 2, Article 1052 of the Civil Code stipulates that if one spouse is fully responsible for the substantial reasons that make it difficult to maintain the marriage, only the other spouse has the right to file for divorce.

 

 

Based on a literal interpretation of the proviso of Paragraph 2, Article 1052 of the Civil Code, if only one spouse is responsible for the substantial reasons that make it difficult to maintain the marriage, the spouse, who is wholly at fault, cannot file for divorce on the grounds that there are substantial reasons that make it difficult to maintain the marriage.

 

But what if both parties are responsible for the substantial reasons that make it difficult to maintain the marriage? The resolution of the Fifth Civil Tribunal Council of the Supreme Court of 2006 expanded the scope of application of the proviso, stating that when both spouses are responsible for a substantial reason that makes it difficult to maintain the marriage, the degrees to which they are at fault should be compared and the spouse that is more at fault may not file for a divorce.

 

However, the Judgment stipulates that the proviso of Paragraph 2, Article 1052 of the Civil Code precludes the spouse wholly at fault from filing for a divorce, and if both spouses are at fault, regardless of the degrees to which they are at fault, both are not subject to the proviso. In other words, the previous interpretation of the proviso of Paragraph 2, Article 1052 established by the resolution of the Fifth Civil Tribunal Council of the Supreme Court is no longer applicable. Thus, in the event that both parties are responsible for a substantial reason that makes it difficult to maintain the marriage, even the spouse that is more at fault may file for divorce.

 

 

The Judgment holds that the restriction imposed by the proviso of Paragraph 2, Article 1052 of the Civil Code on the right of the responsible spouse to file for divorce does not, in general, violate the constitutional right to freedom of marriage. The proviso achieves the purpose of protecting the order of marriage, the public’s sense of justice, and the interests of minor children by strengthening the right of the spouse not at fault to maintain the marriage.

 

However, the Judgment also holds that, by not considering whether a significant time has elapsed after the occurrence of a substantial reason that makes it difficult to maintain the marriage, or whether the reason has existed for a significant time, the proviso completely deprives the spouse wholly at fault of the right to file for divorce. This blanket ban may be draconian in certain cases. Consequently, the proviso violates the constitutional right to freedom of marriage.

 

The Court instructed competent agencies to amend the laws in accordance with the holding of the Judgment within two years of the Judgment’s promulgation, i.e., before March 23, 2025; and if the amendment is not completed then, courts shall rule in accordance with the holding of the Judgment.

 

The Judgment has an immediate impact on the judicial divorce system, as it changes the interpretation of the proviso of Paragraph 2, Article 1052 of the Civil Code, allowing the spouse that is more at fault to file for a divorce. Moreover, by declaring proviso of Paragraph 2, Article 1052 of the Civil Code partially unconstitutional, the Judgment grants the spouse wholly at fault the right to file for divorce in the future when a significant time has elapsed after the occurrence of the substantial reason that makes it difficult to maintain the marriage or the reason has existed for a significant time. It is foreseeable that the focus of the parties in a divorce litigation will no longer be on “whether a judicial divorce should be granted,” but gradually become issues such as divorce damages and the protection of the rights of minor children.